An Assessment of the Evolution and Oversight of Defense Counterintelligence Activities Michael J. Woods & William King* For more than thirty years, our country has struggled to delineate the boundaries of domestic intelligence operations. Americans tend to regard those government components exercising national security powers within the borders of the United States (whether under clear authority or not) with an inherent suspicion bolstered by historical experience. We tolerate the existence of such components but insist that they be highly regulated, particularly with respect to any activities that impinge upon civil society. Historical circumstances influence, but never erase, this regulatory imperative. Despite this imperative, components may occasionally escape regulation – at least for a time – because they are unknown, their missions remain mysterious or only partially understood, or because (intentionally or not) a convincing illusion of sufficient regulation is presented to the examining eye. The aim of this article is to focus on the regulation of those components of the Department of Defense (DoD) empowered to conduct counterintelligence activities. We intend to explore the interlocking effects that statutes, intelligence oversight rules, internal DoD structure, and operational culture have on the conduct of counterintelligence.1 In our view, these form a regulatory milieu that governs what DoD counterintelligence operators do, or are willing to attempt, in the context of domestic intelligence operations. Some parts of this environment, such as the varied cultures of the several organizations comprising DoD counterintelligence, are more difficult to describe than others. Some, such as the debate over the “wall” in the context of domestic electronic surveillance, occur almost entirely outside of the DoD. However, we see most of the milieu as ultimately reducible to the underlying law. The legal definition of the term “counterintelligence,” the placement of intelligence operations in the statutory structure of the Department, and the post-9/11 changes in the practice and law of * Michael J. Woods is an attorney in the U.S. Department of Justice. He previously served as chief of the Federal Bureau of Investigations (FBI) National Security Law Unit and as Principal Legal Advisor to the National Counterintelligence Executive. The research and writing of this article (exclusive of some final editing) occurred while he was in private practice. William King is a former Air Force intelligence officer and an attorney now in private practice. The views expressed in this article are those of the authors and do not reflect the official policy or position of the Department of Defense, the Department of Justice, the U.S. Government, or any former employer or client of either author. 1. Although both authors have had direct experience with DoD counterintelligence activities, this article is based entirely on publicly available materials. No reference to any classified or otherwise restricted information is intended. 169 170 JOURNAL OF NATIONAL SECURITY LAW & POLICY [Vol. 3:169 intelligence collection all drive the policy and culture that shape DoD counterintelligence. Our plan is to explore this thicket of regulation, policy, and law with an eye toward evaluating its adequacy in the present environment. Such a project is certainly appropriate in light of the larger topic of the role of the military in civil society and the specific role of military counterintelligence organizations in activities considered problematic. Since September 11, 2001, the country has experienced yet another iteration of the familiar “pendulum” pattern in the regulation of intelligence activities. In the immediate aftermath of the attacks, there was broad consensus that the national security components of our government had been unduly restricted in the exercise of their appropriate functions by legal and regulatory constraints that responded not to present conditions but to the specter of past abuses. The abuses by the FBI, the CIA, and DoD intelligence components that came to light in the mid-1970s led to an extensive framework of law and regulation intended to prevent misuse of national security powers.2 That framework, with remarkably few alterations, governed the work of the U.S. intelligence community for a quarter century. The influence of this great spasm of regulation was felt particularly within the DoD, components of which had been responsible for some of the more spectacular of the identified abuses.3 Some argue that portions of this regulatory matrix had ossified by 2001. Conservative interpretation of the rules governed behavior, with caution reinforced by constant references to the Congressional investigations of intelligence activities in the 1970s. The rules suffered further from the accretion of questionable theories that, at least in retrospect, did not reflect the original intent of the drafters of the regulatory framework.4 On the eve of 9/11, the components charged with protecting the country against terrorist attack 2. That framework includes both statutes, such as the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. §§1801-1871 (2000 & Supp. 2004), the Privacy Act of 1974, 5 U.S.C. §552a (2000), and Executive Branch regulations, specifically Executive Order No. 12,333, 46 Fed. Reg. 59,941 (Dec. 8, 1981), and its progeny. 3. See Final Report of the Select Committee on Governmental Operations with Respect to Intelligence Activities, 94th Cong. (1976) (Book III: Supplementary Detailed Staff Reports on Intelligence Activities and the Rights of Americans: Improper Surveillance of Private Citizens by the Military), available at http://www.icdc.com/~paulwolf/cointel pro/churchfinalreportIIIk.htm. 4. One of the best examined instances of this is the matter of the “wall” erected between intelligence and criminal investigative activities following certain interpretations of the FISA and pre-FISA case law. See In Re Sealed Case, 310 F.3d. 717 (FISA Ct. Rev. 2002), and Mayfield v. United States, 504 F. Supp. 2d 1023 (D. Or. 2007) (declining to follow In Re Sealed Case); see also David S. Kris, The Rise and Fall of the FISA Wall, 17 STAN. L. & POL’Y. REV. 487 (2006), and NATIONAL COMMISSION ON THE TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT 78-80 (2004); see also Richard B. Schiff, A Counterintelligence Perspective, Or How I Learned to Stop Worrying and Love the Wall, 52 Feb. FEDERAL LAWYER 32 (2005). 2009] DEFENSE COUNTERINTELLIGENCE ACTIVITIES 171 were, in many respects, hamstrung by the restrictive interpretation of rules designed to protect the civil liberties of Americans.5 Following the attacks, the rules were loosened, with varying degrees of care and foresight. Recently, there have been fresh examples of situations in which national security authorities are alleged to have stepped beyond the protective bounds. The “warrantless surveillance” program executed by the National Security Agency (NSA), the seeming overuse of revised national security letter authority by the FBI, and several DoD projects (including the Total Information Awareness program – subsequently renamed the “Terrorism Information Awareness” program in response to press criticism – and the Threat and Local Observation Notice (TALON) database) have raised the question of whether our nation’s intelligence- gathering components are once again less than adequately regulated. It is in the context of this “pendulum” that we focus on the role of DoD counterintelligence. Our purpose is to give specific attention to the way in which the DoD’s implementation of larger regulatory actions has shaped the counterintelligence environment inside the DoD (and has created implications for civil society beyond DoD). There are a number of reasons for choosing to look specifically at DoD counterintelligence, the most obvious being that DoD counterintelligence components are the common denominator in most of the DoD-related incidents that have garnered national attention as suspected intrusions into civil society. The TALON database, for example, was housed at the DoD Counterintelligence Field Activity (CIFA), which itself was associated with the DoD’s post-9/11 data-mining efforts.6 Military service counterintelligence agents have been involved in an increasing number of activities not in support of military operations, but rather in the domestic civilian environment.7 The widespread participation of DoD agents on the FBI’s Joint Terrorism Task 5. See id. There are more specific examples of the effect that the interpretation of DoD intelligence oversight rules had on pre-9/11 activity. One example, though controversial, is the ABLE DANGER matter discussed infra at note 162. 6. See discussion infra at the text accompanying notes 119-125 and 164-167. 7. Perhaps the best known example of the use of DoD counterintelligence components to investigate potential terrorist threats that appear to have no more than a minimal nexus to DoD operations occurred in a widely publicized incident at the University of Texas in 2004. In that incident, Army counterintelligence agents questioned the organizers of an Islamic legal conference at the University of Texas, in response to concerns reported by military attendees at the conference. See A.J. Bauer, Army Agent Questions Law Students, THE DAILY TEXAN, Feb. 12, 2004, available at http://media.www.dailytexanonline.com/media/ storage/paper410/news/2004/02/12/University/Army-Agent.Questions.Law.Students-60534 5.shtml.